Mining
Surface Mining Control and Reclamation Act - National Environmental Policy Act
Surface Mining Control and Reclamation Act (SMCRA) of 1977 (30 U.S.C. ch. 25 § 1201 et seq.)
During the 1970s, “a national need for new energy sources” led to increased interest in surface mining to extract resources for electricity generation (Gilliam and McCartney, 2013, p. 33). Specifically, surface mining for coal was considered integral to the nation’s need for energy. However, these surface mining operations led to increased water pollution, flood risks, landslides, threats to wildlife, and other negative aspects which Congress found to “adversely affect commerce and the public welfare by destroying or diminishing the utility of land” 30 U.S.C § 1201 (b). Thus, Congress passed the Surface Mining and Reclamation Act of 1977 (SMCRA).
The Surface Mining Act established a nationwide program to protect the environment and society from the negative effects of surface mining within the existing industry. To create regulations and oversee enforcement, the Act created and empowered the Office of Surface Mining Reclamation and Enforcement (OSM) within the Department of the Interior. The Act created a two-stage program for enacting these surface mining regulations.
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The first, interim, phase mandated immediate federal enforcement and oversight of the Act’s environmental performance standards. As part of these performance standards, mine operators were required to restore surface mined land to its former condition and approximate original contour after mining as stated in 30 U.S.C § 1265 (d). States were permitted to issue surface mining permits and develop their own regulatory programs, provided that they complied with federal standards. However, States were not required to enforce these standards.
The second, permanent, phase of the act mandated that each state adopt a regulatory program that complied with federal standards, which was enforced by either the state itself or the federal government. States could achieve this permanent regulatory authority by proposing a program to the Secretary of the Interior.
Following the act, there was significant variation in state oversight (Desai, 1997, p. 557). States with more robust coal industries had lower federal enforcement rates, often adopting their own state regulatory programs (Desai, 1997, p. 553). There was significant variation within states themselves in how conflicting coal mining operators, environmentalists, and governments balanced the environmental and economic interests associated with the Surface Mining Act (Desai, 1997, p. 558).
Sources:
Desai, Uday. “COLLOQUIM ON SMCRA: A TWENTY YEAR REVIEW: A Comment On
Federal/State Relations In The Context Of SMCRA.” Southern Illinois University Law Journal 21 (Spring, 1997): 553, available at: https://advance.lexis.com/api/document?collection=analytical-materials&id=urn%3acontentItem%3a3S3T-V160-00CV-R0PH-00000-00&context=1519360&identityprofile id=GZVX8R51690.
Gilliam, Bobby S., McCartney, Jonathan P. “ARTICLE: Louisiana Lignite Mining in the Wake of the Haynesville Shale.” Louisiana State University Journal of Energy Law and Resources 2 (Fall, 2012): 31, available at https://advance.lexis.com/api/document?collection=analytical-materials&id=urn%3acontentItem%3a5KKR-P460-0014-205J-00000-00&context=1519360&identityprofileid=GZVX8R51690.
Hodel v. Va. Surface Mining and Reclamation Ass’n, Inc. et al. 452 U.S. 2640 (1981).
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Link to case: https://www.courtlistener.com/opinion/110516/hodel-v-virginia-surface-mining-reclamation-assn-inc/?page=2
Link to United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title30/USCODE-2023-title30-chap25-subchapV-sec1265&collectionCode=USCODE
Please note that the following brief was prepared by a student.
Heading: Hodel v. Virginia Surface Mining and Reclamation Association, Inc. et al., 452. U.S. 264 (1981)
Plaintiffs/Appellees: Virginia Surface Mining and Reclamation Association, Inc., of its member coal companies, 4 individual landowners, The Commonwealth of Virginia, and the town of Wise, Virginia.
Defendants/Appellants: Donald Paul Hodel, Acting Secretary of the Interior
Court: Supreme Court of the United States
Procedural History: This case is a consolidation of appeals from the appellants and the appellees from the United States District Court for the Western District of Virginia. The Supreme Court reversed the District Court’s decision that Congress exceeded its power as it relates to the Commerce Clause by passing the Surface Mining Act. The Supreme Court overturned the District Court’s ruling that the Act is unconstitutional because it violates the Fifth and Tenth Amendments (p. 268). The appellees filed suit in Federal District Court, seeking declaratory and injunctive relief against various provisions of the interim regulatory program (Surface Mining Act, the Act) (p. 268). The Commonwealth of Virginia and the town of Wise, Virginia then intervened as plaintiffs (p. 273).
Facts: The interim regulations of the Surface Mining Act were published in December 1977 and were in effect in Virginia when the appellees first filed suit in October 1978 (p. 273). The permanent aspect of the regulatory program in Virginia was scheduled to become effective in June 1980 (p. 273). The appellees, the Virginia Surface Mining and Reclamation Association,Inc., is “an association of coal producers engaged in surface coal mining operations in Virginia” (p. 273).
The appellees alleged that under the interim provisions of the Act the Congress 1) transgressed the limits of its authority under the Commerce Clause, 2) violated the Tenth Amendment, and 3) infringed on the Due Process & Just Compensation Clauses of the Fifth Amendment (p. 273) [1, 2]. Specifically, the appellees argued that Sections §515 (d) and (e) of the Act, which specify the performance standards for surface coal mining operators on “steep-slopes” and approved governmental variances from these requirements, violated the Tenth Amendment.
The District Court agreed because they held that the law interfered with the States’ “‘traditional governmental function’ of regulating land use” (pg. 21). For example, the District Court held that the Act’s steep-slope provisions “impermissibly constricted the State’s ability to make “‘essential decisions’” by taking away States’ control over the economy and “police powers” over land use planning (p. 285). The District Court also found that the Act caused economic harm to the States by forcing them to expend “‘state funds to implement the act’” (p. 285). The District Court’s reasoning heavily relied on the Supreme Court’s Ruling in National League of Cities v. Usery, 426 U.S. 833 (1976).
Issue: Did the steep-slope performance standards, as stated in 30 U.S.C. § 1265 (d) and (e) of the Surface Mining Control and Reclamation Act, violate the Tenth Amendment?
Holding: No, the court found that the steep-slope performance standards did not violate the Tenth Amendment and were not unconstitutional.
Reasoning: The Supreme Court held that the Sections §515 (d) and (e) do not violate the Tenth Amendment by limiting State’s ability to make “essential decisions” because 1) the Act regulates private individuals, 2) Congress has the authority to displace police powers by regulating private activity under the Commerce Clause, and 3) States are not required to assume a regulatory role.
While the lower court based its ruling that the steep-slope provisions of the Act violated the 10th Amendment on the Supreme Court’s National ruling, the Court found that the reasoning in that case does not apply. In the National League of Cities, the Court had ruled that Congress did not have the power to regulate States because the Tenth Amendment requires recognition of State sovereignty that cannot be impaired by Congress (p. 286). The Court argued that for the reasoning of the National League Cities ruling to apply here, the Act needed to satisfy three requirements: 1) the statue regulates the “States as States”, 2) the “federal regulation must address matters that are indisputably ‘[attributes] of state sovereignty,’” and 3) compliance with the federal law “would directly impair [the state’s] ability ‘to structure integral operations in areas of traditional government functions’” (p. 287-288). The Court held that the Surface Mining Act did not meet the first of these criteria because the steep-slope provisions outlined in §515 (d) and (e) only govern private coal mine operators and did not seek to regulate the States as States (p. 288). Therefore, the Court held that these provisions of the Act do not violate the Tenth Amendment.
The Court also held that even though Sections §515 (d) and (e) displaced some of the State’s police powers by regulating land use, the Act did not violate the Tenth Amendment (p. 289-290). The Court cited a “long-established precedent” where Congress had the authority to displace state police power by regulating private activity under the Commerce Clause (p. 26).
Finally, the Court noted that the Act did not cause economic harm to States because the Act did not force States to “enforce the steep-slope standards, to expend any state funds, or to participate in the federal regulatory program whatsoever” (p. 288). If a State does not “submit a proposed permanent program that complies with the Act and implementing regulations,” the Federal Government assumes the full regulatory burden of enforcing the Steep-Slope provisions (p. 292).
[1] As stated in Article I § 8 of the U.S. Constitution , the Commerce Clause gives Congress the power to regulate interstate and foreign Commerce. U.S. Const., Art. I § 8, cl. 3.
[2] The Tenth Amendment guarantees that powers which are not delegated to the federal government nor not prohibited from falling under the State, “are reserved to the States respectively, or to the people.”
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30 U.S.C. § 1292 is a part of the Surface Mining Control and Reclamation Act of 1977 and this statute is referenced as the "savings clause". The Surface Mining Control and Reclamation Act of 1977 and the Federal Water Pollution Control Act of 1972 are both federal statutes which have legislation regarding the regulation of coal mining. It has been noted that there is significant overlap between the two acts, and this can lead to a degree of confusion over which statute applies in certain situations. In S. Appalachian Mt. Stewards v. Red River Coal Co., the coal mine operator had a permit that shielded it from liability under the Clean Water Act, but it was disputed whether they were still shielded from liability under the Surface Mining Act, which does not have a permit liability shield.
References
Beck, Robert E. “Setting the Course for the Surface Mining Control and Reclamation Act of 1977.” Natural Resources & Environment 10, no. 2 (1995): 24–76. http://www.jstor.org/stable/40923447.
Robert E. Beck *, ARTICLE: WATER AND COAL MINING IN APPALACHIA: APPLYING THE SURFACE MINING CONTROL AND RECLAMATION ACT OF 1977 AND THE CLEAN WATER ACT, 106 W. Va. L. Rev. 629, (Spring, 2004), available at https://advance.lexis.com/api/document?collection=analytical-materials&id=urn:contentItem:4CPM-SR60-00CV-W02K-00000-00&context=1516831.
This source contains details regarding the interaction between the Surface Mining Control and Reclamation Act and the Clean Water Act which constitutes the issue of the briefed case. Futhermore, this source includes the history of coal mining in Appalachia, which is relevant as it is the location of the parties in the case. Beck outlines the different issues that are covered by the SMCRA and the CWA, and crucially discusses the saving clause as well. Beck writes about the history of the SMCRA as it pertains to Appalachia and the specific consequences this bill had on this region. Moreover, this source discusses the pollution discharged from abandoned mines and how the SMCRA aims to address the issue.
"THINGS DONE AND LEFT UNDONE": THIRTY YEARS OF EXPERIENCE WITH THE SURFACE MINING CONTROL AND RECLAMATION ACT, 54 Rocky Mt. Min. L. Inst. 19-1 2008 (2013), available at https://advance.lexis.com/api/document?collection=analytical-materials&id=urn:contentItem:580K-DCW1-JB45-G1CF-00000-00&context=1516831.
This source details the structure, purpose, history, and consequences of the Surface Mining Control and Reclamation Act. This source mainly discusses the SMCRA in the context of environmental law and issues it poses regarding federalism. It also evaluates the SMCRA in terms of its historic strengths and weaknesses for regulating coal operations. The authors also discuss the history of the SMCRA because the timing of the act coincides with many other environmental legislation passed, such as the Clean Water Act, which is important to understand regarding the briefed case. Since the statute heavily involves enforcement and regulation from the states, it also discusses issues regarding federalism which also play a factor in the decision for the discussed case.
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Link to case: https://casetext.com/case/stewards-v-red-river-coal-co-3
Link to United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title30/USCODE-2023-title30-chap25&collectionCode=USCODE
Please note that the following brief was prepared by a student.
Plaintiff: SOUTHERN APPALACHIAN MOUNTAIN STEWARDS; APPALACHIAN VOICES; SIERRA CLUB
Defendant: RED RIVER COAL COMPANY, INCORPORATED
Court: United States Court of Appeals for the Fourth Circuit
Facts: The plaintiffs are the Southern Appalachian Mountain Stewards, Appalachian Voices, and the Sierra Club. The plaintiffs have brought an action against the defendant, Red River Coal Company, on the basis that they have violated the Surface Mining Act. The plaintiffs allege that the defendant’s currently inactive North Fox Gap Surface Mine in Wise County, Virginia has continued to discharge pollutants into the water sources in its vicinity, violating the standards of the Surface Mining Act.
In the State of Virginia, both the Surface Mining Act (Surface Mining Control and Reclamation Act) and Clean Water Act (Federal Water Pollution Control Act) regulate the operations of coal surface mines and their discharge of pollutants into water. The Clean Water Act is enforced by the EPA and particularly concerns the regulation of the discharge of pollutants into United States waters. Some polluters may be exempt from a degree of liability for the pollution of waters if they are granted a permit which allows the permit-holder to discharge a certain amount of pollutants into waters. These permit-holders that pollute are deemed to be in compliance with the Clean Water Act, shielding them from liability. These permits may be granted by the EPA or by states which the EPA has delegated authority to do so, such as Virginia.
Although the Surface Mining Act also originates from federal legislation, states are delegated the power to enforce the act. In states which meet the criteria of the Surface Mining Act, such as Virginia, the state has the ability to “exclusively regulate surface coal mining operations” by creating a permit system that incorporates the “anti-pollution performance standards'' of the act (p. 309). Unlike the Clean Water Act, an operator with a Surface Mining Act permit can still be held liable for their discharge of pollution.
Procedural History: This is an appeal by the plaintiffs from the United States District Court for the Western District of Virginia, at Big Stone Gap. The case was previously presided over by District Judge James P. Jones in 2017. The plaintiffs initially alleged that the defendants had violated both the Clean Water Act and the Surface Mining Act, along with the Resource Conservation and Recovery Act of 1976. The plaintiffs brought an action against the defendant on the allegation that there are “discharges of pollutants from point sources at Red River’s now-inactive North Fox Gap Surface Mine in Virginia” (p. 309).
The lower district court granted summary judgment to the defendant with the rationale that the Surface Mining Act included a saving clause which states that nothing in the act “‘shall be construed as superseding, amending, modifying, or repealing... [the Clean Water Act and] the State laws enacted pursuant thereto.’ 30 U.S.C. §1292(a)(3)” (p. 309). The court decided that although the defendant would have been liable under the Surface Mining Act, they are shielded from liability due to their Clean Water Act permit. Thus, to hold the defendant liable under the Surface Mining Act would violate the saving clause of the statute.
The plaintiffs appealed the decision concerning the summary judgment of the Surface Mining Act claim to the circuit court in December 2020 and the case was decided in March 2021. The opinion was drafted by Judge Julius N. Richardson.
Legal Issue: Even when there is no substantive inconsistency between the standards in the Clean Water Act and Surface Mining Control and Reclamation Act, did the court rule that an inconsistency in scope of liability to be sufficient to evoke the Surface Mining Control and Reclamation Act’s saving clause as stated in 30 U.S.C. §1292(a)(3)?
Holding: Yes, if an operator’s conduct is shielded from liability under the Clean Water Act, it cannot be held liable for the same conduct under the substantively identical standards of the Surface Mining Act. A discrepancy regarding the scope of liability is sufficient to evoke the Surface Mining Control and Reclamation Act’s (Surface Mining Act) saving clause, which gives precedence to the Clean Water Act in cases of overlapping regulation.
Rationale: The court affirms the federal circuit court’s decision that the defendants cannot be held liable for the discharge of pollutants under the Surface Mining Act because the defendants are shielded from liability through their Clean Water Act permit. The defendants have a valid permit defense because the Surface Mining Act is subservient in its scope of liability due to its saving clause, which states that nothing in the act can supersede the Clean Water Act. The court succinctly states, “liability may not be imposed under the Surface Mining Act for a specific discharge when the Clean Water Act’s permit shield bars liability under the Clean Water Act for that same discharge” (p. 311).
Although there are no inconsistent substantive standards in the acts, there is an inconsistency in the “scope of liability for violating those standards,” as a Clean Water Act permit shield can prevent an operator from being held liable, while a Surface Mining Act permit does not entail a liability shield (p. 311). Regardless of the inconsistency in the scope of liability, the court stated that even if the acts were substantially inconsistent, such as the Surface Mining Act posed more stringent standards, the possession of a Clean Water Act permit would still shield an operator from liability, despite the actions being regulated by both acts. Hence, the court dismisses the plaintiff’s argument that the defendant should be held liable under the Surface Mining Act standards because they are consistent with the standards of the Clean Water Act. The court restates that the key point is that the Clean Water Act’s permit shield is in conflict with the Surface Mining Act’s lack of a permit shield for the same discharges. This lack of a permit shield in itself is enough to be considered an inconsistency between the two acts that is covered by the saving clause.
Moreover, the court discusses that it was Congress’ intention for the Surface Mining Act to “meet the requirement of other statutes” by the saving clause (p. 313). Therefore, in cases of a “regulatory gap”, the saving clause would not be in effect.
However, since the case at bar concerns a matter that has overlapping regulation, the Clean Water Act clearly takes precedence according to the Surface Mining Act’s saving clause.
The court continues to refute the plaintiffs' arguments. The plaintiffs cited United States v. Locke, 529 U.S. 89 and Geier v. American Honda Motor Co., Inc., 529 U.S. 861 in order to argue that there is precedent that a saving clause should be interpreted broadly by the court and that the court should not interpret the law in a way that is self-defeating. However, the court disagreed that these are appropriate precedents for this case and dismissed the plaintiffs’ claims since the cited cases answer different legal questions than the one being asked at bar. The cited cases were about federal interference with the jurisprudence of states and were statute-specific, while the case at bar regards federalism and different statutes. Hence, the court states that it is appropriate here to interpret the saving clause narrowly.
Furthermore, the court rejects the plaintiffs’ argument that interpreting the saving clause in a narrow manner would “destroy” the objectives of the Surface Mining Act. The court states that the Surface Mining Act’s “non-hydraulic performance standards” are still in full force when they do not interfere with any of the statutes listed in the saving clause (p. 315). The court believes that the intention of the Surface Mining Act to broadly “protect society and the environment from the adverse effects of surface coal mining operations” remains intact (p. 315).
The court notes that there are still many areas that the act regulates that do not interact with the Clean Water Act or other statutes. The court calls the plaintiffs’ arguments, “exaggerated parade-of-horribles”, which are beyond the text of the statute (p. 315). The court claims that it is “not unsympathetic to concerns about the purity of the water that Virginians rely on,” but states its duty to fairly interpret legislation (p. 315). The court affirmed the decision of the lower court to grant summary judgment to the defendants regarding the Surface Mining Act Claim.
Dissenting Opinions: None.
National Environmental Policy Act (NEPA) (42 U.S.C. § 4321 et seq.)
NEPA does not mandate particular outcomes but creates procedural obligations to ensure transparency and public accountability in environmental governance. The statute also promotes interdisciplinary analysis, public participation, and interagency cooperation. The agency must consider the EIS before approving a project and make it available to the public.
Importantly, courts reviewing agency actions under NEPA apply the “rule of reason,”determining whether the agency took a “hard look” at the environmental consequences, not whether it made the best decision. As interpreted by case law, NEPA violations occur when agencies fail to take this hard look, ignore alternatives, or bypass public engagement.
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The National Environmental Policy Act of 1969 (NEPA) was enacted to ensure that environmental factors are considered in federal decision-making. One of its most important provisions, 42 U.S.C. § 4332(C), requires federal agencies to prepare an Environmental Impact Statement (EIS) for any major federal action that significantly affects the environment. The EIS must analyze environmental consequences, alternatives to the proposed action, and any unavoidable adverse effects.
In Bartell Ranch LLC v. McCullough, petitioners argued that the Bureau of Land Management (BLM) failed to comply with NEPA by approving the Thacker Pass lithium mine without adequate environmental analysis or consultation with Indigenous tribes. The case raises questions about how robust and meaningful an EIS must be, especially when fast-tracking renewable energy development intersects with Indigenous land and ecological protection.
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Link to case: https://law.justia.com/cases/federal/appellate-courts/ca9/23-15262/23-15262-2023-07-17.html
Link to United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title42/USCODE-2023-title42-chap55-subchapI-sec4332&collectionCode=USCODE
Please note that the following brief was prepared by a student.
Heading: Bartell Ranch LLC v. McCullough, 2023 U.S. Dist. LEXIS 19280 (D. Nev. Feb. 6, 2023)
Plaintiff: Bartell Ranch LLC, Edward Bartell, Western Watersheds Project, Great Basin Resource Watch, Basin and Range Watch, Wildlands Defense, Reno-Sparks Indian Colony, Burns Paiute Tribe
Defendant: Melanie McCullough, Bureau of Land Management, United States Department of the Interior, and associated federal officials
Court: United States District Court for the District of Nevada
Facts: BLM approved the Thacker Pass Lithium Mine in Nevada, an open-pit mine project by Lithium Nevada Corp., under its Record of Decision. Environmental plaintiffs, including Bartell Ranch, Western Watersheds Project, and others, challenged the approval, alleging violations of NEPA and other laws. They claimed BLM failed to take the required “hard look” at environmental consequences, did not consider adequate alternatives, and did not respond sufficiently to criticism from the EPA and the Nevada Department of Wildlife.
Procedural History: Environmental plaintiffs brought suit in the District of Nevada. The court reviewed the BLM’s environmental impact process under NEPA and ruled on cross-motions for summary judgment.
Legal Issue: Did the BLM violate NEPA’s requirements under 42 U.S.C. § 4332(C) by failing to adequately evaluate environmental impacts and alternatives before approving the Thacker Pass project?
Holding: No. The court held that the BLM’s approval complied with NEPA. The agency had taken the required “hard look” at environmental effects, considered reasonable alternatives, and sufficiently addressed concerns raised in public comments.
Reasoning: The court found that the EIS included detailed assessments of groundwater impacts, air quality, and land use. It acknowledged that BLM had evaluated alternatives, including a “no action” scenario and modified designs to reduce environmental impact. BLM also incorporated suggestions from environmental agencies and updated its documentation. The court reiterated that NEPA’s standard is procedural, requiring thorough analysis, not perfection or consensus, and concluded BLM had satisfied its statutory duties.
Significance: This case demonstrates the procedural nature of NEPA and reinforces that as long as agencies provide reasoned analysis and public transparency, courts will generally defer to their decisions, even amid environmental justice or tribal sovereignty concerns.
Dissenting Opinions: None.